Who Really Won With Kaepernick Settling His Case Against The NFL

On October 15, 2017, former National Football League quarterback Colin Kaepernick filed a grievance alleging that NFL teams and their owners colluded against him. He claimed that they were retaliating against him for his demonstrations during the National Anthem.

On February 15, 2019, the grievance was settled and a joint statement was released. It said, “For the past several months, counsel for Mr. Kaepernick and Mr. [Eric] Reid have engaged in an ongoing dialogue with representatives of the NFL. As a result of those discussions, the parties have decided to resolve the pending grievances. The resolution of this matter is subject to a confidentiality agreement so there will be no further comment by any party.”

Who won?

As an outsider who had no connection to the pending grievance, I look at the result as a win-win for the parties. No matter how much or how little money was paid by the NFL to Kaepernick and his lawyers (assuming that the lawyers were serving as counsel on a contingency agreement that provided them a percentage on any judgment or early resolution), it was probably a smart decision for both sides to come to an early conclusion on the case.

That said, I have served as counsel in countless cases that ultimately ended with a settlement agreement between the parties in a dispute. What I have found is that neither side feels great when a resolution is first brokered. Each party will believe that it is leaving something on the table and could have achieved a better result if it pushed through to the end. However, reason often prevails, and if the parties are able to push emotions aside while performing a risk vs. reward analysis, they will often choose to settle as opposed to further rolling the dice. I imagine that is what happened in this instance as well.

What changes?

Absolutely nothing to the bigger picture of how collusion claims will be handled by the NFL. A settlement agreement will provide extensive releases among the parties to the dispute, but will not cause any alterations to the NFL collective bargaining agreement and its terms that control how collusion-related claims are adjudicated.

As I wrote in the Harvard Law School Journal of Sports & Entertainment Law article, “What if Kaepernick is Correct?: A Look at the Collusion Criteria in Professional Sports,” Article 17 of the NFL collective bargaining agreement is of paramount importance in a collusion grievance. It prohibits teams, their employees and agents from entering “into any agreement, express or implied, with the NFL or any other Club . . . to restrict or limit individual Club decision-making,” with regard to the following conduct: 1) player negotiations, 2) submitting an Offer Sheet, 3) offering a Player Contract to any player, 4) exercising a Right of First Refusal, or 5) deciding the terms or conditions of employment.

Importantly, a settlement changes nothing about this provision or the procedure of adjudicating a collusion claim. If a player believes that he is the subject of collusive behavior, then he may bring a grievance within ninety days of the time he knew or reasonably should have known that he had a claim, or within ninety days of the first regular season game in the season that the violation occurred, whichever is later.

What was Kaepernick concerned about?

The burden on the player is something that appears to be heightened from the typical standard used in civil lawsuits. It mandates that the player bears a burden of demonstrating by a “clear proponderance of the evidence” that the conduct was in violation of the Anti-Collusion Provision and caused an economic injury. As stated in my Harvard Journal of Sports & Entertainment Law article,

The “clear preponderance of the evidence” standard is derived from the traditional standard of persuasion in civil litigation; however, it adds the word “clear” prior to “preponderance of the evidence,” which distinguishes the standard from most civil courts. A mere preponderance of the evidence standard customarily requires that the fact-finder “believe that existence of a fact is more probable than its nonexistence.” It is the tipping of the scales in favor of one position over another. The standard promulgated by the NFL is not the traditional preponderance of the evidence standard as the inclusion of “clear” indicates a higher burden. It suggests that the grievant needs to prove more than the preponderance of the evidence, but less than beyond a reasonable doubt, which is the adopted criminal standard in the U.S.

I believe that, in the absence of a smoking gun, Kaepernick was concerned about having a case that would satisfy what appears to be a tough burden of proof. It made more sense to strike a deal and cause the general public to consider it a win while earning some money and allowing him to focus on other pursuits.

A settlement does not change the standard. NFL players would need to negotiate a new standard for the next iteration of the NFL collective bargaining agreement, but it is usually the case that they have much bigger concerns to deal with and it is likely that this is far from the top of their list.

What was the NFL concerned about?

Would an opinion by the arbitrator that handed the NFL a win truly put an end to the issue or only magnify it further? I believe that the NFL was considering that going to a final arbitration hearing would have been a lose-lose situation from a public relations perspective.

Furthermore, I think that the NFL was likely concerned of the strong likelihood that, if the NFL prevailed in the grievance, Kaepernick would rush to court with a petition to vacate the award. It would not matter so much as to whether Kaepernick had a strong claim; the NFL would be on edge about any negative information gathered by Kaepernick ultimately leaking to the general public.

A good example of what can occur has been playing out in the dispute between Creative Artists Agency (CAA) and its former employee Ben Dogra. The former NFL agent filed an arbitration action against CAA in February 2015. Arbitration actions are supposed to be quicker, less costly and much more confidential than a typical civil court proceeding. That was true for the Dogra vs. CAA case for quite some time.

Then, in November 2018, CAA filed a complaint in federal court seeking to vacate the opinions and awards of the arbitrator. The judge refused to seal the important, and previously confidential, details of the parties’ prior relationship. A dispute that was intended to be kept confidential by way of an arbitration provision is now open for all to view as it plays out.

I do not think that is something the NFL wanted to even consider occurring in the Kaepernick case.

How much money will the NFL pay Kaepernick?

This requires a lot of guesswork. “NFL likely is paying BIG money to keep secret any deposition transcripts, text messages, emails, etc. that may have shown an effort by the league office to discourage teams from signing Kaepernick,” tweeted ProFootballTalk. The account added that its over/under for the settlement is $49.5 million.

I have also read NFL columnist Mike Freeman’s tweet that the “Number NFL team officials are speculating to me is the NFL paid Kaepernick in the $60 to $80 million range.” It is all speculation, which is what it should remain as if the confidentiality provisions of the settlement agreement are enforced. The only reason why any compensation figures should be available to the public is if it is subpoenaed in a separate judicial proceeding and the court requires its disclosure.

Anyhow, I will do a bit of speculating myself. I do not think the NFL paid anywhere near the $60 to $80 million range, and I will take the under on ProFootballTalk’s betting line. I personally do not believe that Kaepernick possessed the smoking gun that he would have needed in order to force the NFL to cough up such a significant sum of money. If he had it, then I think that Kaepernick would have gone all the way to a final arbitration hearing and rejected any offers that the NFL made to him.

Kaepernick’s lawyer Mark Geragos alluded to the belief that he would obtain a smoking gun when the case was filed in October 2017.

“I am going to predict right now that we will have a smoking gun,” Geragos said. “There are people who are not going to get into an arbitration proceeding and they are not going to lie. They are not going to lie. They are going to tell the truth and they’re going to say what happened. They were told no, you’re not going to hire him.”

I am now predicting that while Geragos probably dug up a lot of damning information about the NFL, the smoking gun was not found. Otherwise, I do not see someone like Kaepernick settling at this juncture. If Kaepernick could have clearly shown that at least two teams entered into an agreement to deny him an opportunity to play in the NFL, then I think he would have gone to the very end against the league.

My purely speculative guess is that the NFL agreed to pay Kaepernick somewhere between $10 and $20 million.